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California Court of Appeal reverses denial of CBS’s anti-SLAPP motion to strike plaintiff’s gender and age discrimination claims, finding that selection of weather anchors is protected activity in furtherance of free speech, and remands for determination of probability of success of discrimination claims.
Plaintiff Kyle Hunter brought an employment discrimination suit against CBS, asserting that two of its local television stations discriminated against him on the basis of his gender and age. Plaintiff had expressed interest in an open weather anchor position at each of the local stations, but both stations hired younger female anchors instead. Plaintiff’s complaint asserted two causes of action against CBS for violation of California’s Fair Employment and Housing Act: that CBS adopted a policy of filling vacant weather anchor positions with attractive females instead of hiring male anchors, and that CBS had adopted a policy of filling vacant weather anchor positions with persons under the age of 40.
In response, CBS filed an anti-SLAPP (strategic lawsuit against public participation) motion to strike plaintiff’s complaint pursuant to California Code of Civil Procedure Section 425.16, on the ground that its selection of on-air weather reporters constituted protected activity within the meaning of the anti-SLAPP statute. Plaintiff opposed CBS’s anti-SLAPP motion, arguing that the gravamen of his claims was discrimination rather than free speech, and that even if the anti-SLAPP statute applied to his claims, he had demonstrated a probability of prevailing on the merits. The trial court agreed with plaintiff’s first argument and denied the anti-SLAPP motion, finding that CBS had not shown that its hiring decisions regarding weather anchors constituted protected activity.
The California Court of Appeal reversed. It first explained that the anti-SLAPP statute is intended “to provide for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech.” The statute requires courts to engage in a two-step process when determining whether to grant an anti-SLAPP motion. First, the court must decide whether the defendant has made a threshold showing that the challenged claims arise from protected activity. Second, if the defendant has met its burden, the court must then decide whether the plaintiff has demonstrated a reasonable probability of prevailing on the merits at trial.
In considering the threshold issue of whether plaintiff’s claims arose from protected activity, the court explained that it must examine the “principal thrust or gravamen” of plaintiff’s claim and make the critical determination whether the plaintiff’s claim is based on an act in furtherance of the defendant’s right of free speech. The court cautioned that it “must be careful to distinguish allegations of conduct on which liability is to be based from allegations of motives for such conduct.” CBS argued that plaintiff’s claims arose from protected activity because they were predicated on conduct in furtherance of free speech in connection with an issue of public interest. The court agreed, first finding that plaintiff’s allegations made clear that the injury-producing conduct underlying his discrimination claims consisted of CBS’s decisions about whom to hire as weather anchors. Citing to prior decisions recognizing that reporting the news and creating a television show both qualify as the exercise of free speech, the court concluded that CBS’s selections of weather anchors were essentially casting decisions that helped advance or assist those forms of First Amendment-protected activity. CBS’s hiring decisions therefore qualified as protected activity under the anti-SLAPP statute.
Plaintiff offered several arguments justifying the trial court denial of CBS’s motion, but the court rejected all of them. Plaintiff argued that CBS’s conduct at issue was not its selection of weather anchors, but rather its decision to use discriminatory criteria in making those selections. The court reasoned, however, that plaintiff was confusing the conduct underlying his claims – CBS’s hiring decisions – with the purportedly unlawful motive underlying that conduct – discrimination. The court concluded that whether CBS had a discriminatory motive in not selecting him as a weather anchor was an entirely separate inquiry from whether plaintiff’s claims were based on CBS’s hiring decisions. Plaintiff next argued that discrimination claims are not subject to the anti-SLAPP statute, but the court reasoned that the cases on which he relied did not so hold. In those cases the anti-SLAPP statute did not apply because the protected activity was merely incidental to the unprotected acts underlying the claims, whereas CBS’s protected activity was not incidental to plaintiff’s claims but was the very conduct on which those claims were based. Plaintiff next argued that the act of hiring a reporter itself is not a form of protected speech, but the court reasoned that the anti-SLAPP statute is not limited to claims based on free speech activities themselves, but also extends to conduct “in furtherance” of those activities. Lastly, plaintiff argued that applying the anti-SLAPP statute in this context would essentially afford immunity from anti-discrimination laws. The court explained, however, that the statute does not bar a plaintiff from litigating an action arising out of free speech, so long as the plaintiff is able to satisfy the second prong by demonstrating a reasonable probability of prevailing on the merits.
Plaintiff also argued in the alternative that, even if CBS’s hiring decisions were in furtherance of free speech, that conduct was still not protected activity because it was not done in connection with a public issue or issue of public concern. As an initial matter, the court determined that plaintiff had waived this argument because he did not raise it during the trial court proceedings. The court also found that it would have rejected the argument on substantive grounds. Plaintiff’s argument was predicated on the assumption that a defendant’s conduct must be in furtherance of free speech and must also qualify as a public issue or issue of public concern. The court held, however, that because the statute states that the conduct must be “in connection” with a public issue or issue of public concern, the proper inquiry was not whether CBS’s hiring decision itself was a matter of public interest, but whether that decision was “in connection” with a matter of public interest. Because weather reporting is a matter of public interest, CBS’s decisions regarding who would present those reports was necessarily “in connection” with that public issue, according to the appellate court.
The court reversed the trial court’s denial of CBS’s motion and, because the trial court had not addressed the second prong of the anti-SLAPP analysis, remanded to the trial court to determine in the first instance whether plaintiff demonstrated a reasonable probability of prevailing on the merits.
For more information, please contact Jonathan Zavin, W. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.
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